Citation Nr: 1756026	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  10-22 783	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 20 percent for service-connected cervical myelopathy, status-post discectomy and fusion ("cervical spine disability"). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel


INTRODUCTION

The Veteran had active military service from November 1978 to March 1979; March 1980 to October 1981; December 1990 to May 1991; February 2003 to November 2003; and October 2006 to February 2008.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2, 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In May 2017, the Board remanded the issue for further evidentiary development and adjudication. As explained further in the remand section below, the Board finds that there has not been substantial compliance with the most recent remand order and therefore, further remand is necessary.  See Stegall v. West, 11 Vet. App. 268 (1998). 


REMAND

The Board finds that a remand is required to the Agency of Original Jurisdiction (AOJ), as the October 2016 VA examination was incomplete.  Further, the Board finds that the AOJ did not obtain additional medical evidence, including private treatment records regarding the Veteran's October 2015 cervical spine surgery, as stated in the May 2017 remand order.  Accordingly, the Board REMANDS this case for further evidentiary development and adjudication.

In the October 2016 VA examination, it was noted that the examiner was unable to adequately examine the Veteran as the Veteran did not feel well due to his blood pressure medication.  It was noted that the Veteran initially tried to comply with the examiner's instructions but was unable to due to his condition.  The examination ended with no subsequent examination scheduled.  

At the examination, the Veteran reported having a second cervical spine surgery in 2015.  A review of the records does not reflect attempts to obtain current medical records, including records of the second cervical spine surgery that resulted in futility.  

Accordingly, the case is REMANDED for the following actions:

1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record, including taking the necessary steps to assist in obtaining the private treatment record regarding the Veteran's October 2015 cervical spine surgery.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran his representative. 

2.  After associating all additional records with the claims file, if necessary, provide the Veteran an examination to determine the severity of his cervical spine disability.  The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. 

A detailed rationale for the opinion must be provided.  If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010).

3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case.  The Veteran and his representative should be afforded the applicable time period to respond.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals